The End of DACA
The End of DACA
Yesterday, September 5, 2017, the Trump Administration announced the elimination of Deferred Action for Childhood Arrivals (DACA). This blog (1) recalls what DACA really is, (2) explains what elimination of DACA means and (3) looks at what those affected may do.
DACA was an initiative announced by the Obama Administration on June 15, 2012, and thus constituted an Executive Order. As such, it is not a statute or law that can provide immigration rights, as immigration rights can only be conferred by Congress. DACA merely said: if you (a) fit certain criteria (i.e., are under a certain age, entered the U.S. as a minor, within a certain window of time), (b) raise your hand and tell us everything about you (your name, address, etc.), and (c) prove to us that you are in school and have no serious criminal history, we, the U.S. government will defer our right to remove you from the U.S. A very practical benefit of deferring the action of removing the applicant, the government would give him/her temporary employment authorization, which the applicant then could use to obtain a Social Security number, with which s/he could get a driver’s license, apply for college, etc. In large measure, DACA was announced because Congress would/could not agree on an immigration law to send to the President.
Eliminating DACA, the current Administration stated that it wants Congress to act within 6 months and send an immigration law to the President. In the meantime (and even if Congress does not act), the following will occur: (a) U.S. Citizenship and Immigration Service (USCIS) will process all properly filed DACA applications accepted on or before September 5, 2017, and reject all applications received thereafter. (b) USCIS will process all DACA renewal applications filed on or before October 5, 2017, as long as expiration of the current DACA is on or before March 5, 2018. (c) From September 5, 2017, USCIS will not approve any DACA advance parole applications (temporary permission to travel), returning application fees for all applications not adjudicated prior. However, USCIS will not rescind previously issued DACA advance parole (though travel using the advance parole may not be advisable).
Going forward, DACA holders and those that would have been eligible for DACA had it not been eliminated (and frankly, all those not in proper immigration status), should look for the most common possible basis for more solid immigration status, all of the following ending in permanent residence. One, family based: if the applicant entered the U.S. with inspection or is exempt from that requirement, s/he may be eligible to adjust status (obtain a green card) based upon a petition by a U.S. citizen or legal permanent resident, in particular if the family member is an immediate relative (son/daughter or spouse). Being “waved through” and even admission into the U.S. using fraudulent documents (but not ones claiming to possess U.S. citizenship) can constitute being properly admitted. Excepted from the need to have entered with inspection are those that have had a family or employer petition filed for them (or a parent if they were minors) on or before April 30, 2001, or those that have been subjected to battery or extreme cruelty by a U.S. citizen or permanent resident spouse, parent or son/daughter.
Two, unmarried individuals under 21 that have a juvenile court finding that reunifying them with their parent(s) is not viable due to abuse, neglect, abandonment or a similar basis under State law. The court must also find that the child is dependent on the court or agency of the state (or someone appointed by the state or the court), and that is not in the child’s best interest to be returned to his/her home country.
Three, asylum is protection afforded to someone with a well-founded fear of persecution on account of his/her race, religion, nationality, political opinion or membership in a social group. The persecution must be by the government or a group that he government cannot or does not want to control. Subject to limited exceptions, the application must be made within one year of entry into the U.S.
Four, a temporary visa for a victim of a crime. The U Visa is for a victim that suffered substantial physical or mental abuse as a result of the crime, and has cooperated with the authorities in the investigation or prosecution of the crime. A sworn statement from the relevant authority that the applicant possesses information about the crime and is/has been helpful in its prosecution is required. The T Visa is for victims of sever trafficking in persons, who have assisted in investigation or prosecuting trafficking and would suffer extreme hardship involving unusual or sever harm if removed from the U.S. The applicant must establish s/he was a victim of trafficking by credible evidence (though minors induced to perform commercial sex act are exempted), but does not need a sworn statement from the authorities as in the case of a U Visa.
Finally, is the applicant already a citizen or national of the United States? One can be a citizen or national by birth in the U.S. or one of its territories. Citizenship may be acquired by birth abroad to one or two U.S. citizens, but this depends on the law in effect at the time of birth, which has changed often, and included factors such as: who was the U.S. citizen parent; was the birth out-of-wedlock; when has the parent resided in the U.S. or its territory and for how long. Of course, this and the other possible routes are only generally described here, and need to be addressed in detail by an immigration law practitioner.
For many, DACA is being unfortunately eliminated, but there is hope for Congressional action that would provide more lasting relief, and in the meantime, all other avenues should be explored.